dissenting:
I respectfully dissent. The majority asserts that there are no genuine issues of material fact. There are.
The majority acknowledges that a cause of action for negligent entrustment exists when the seller of a vehicle “has reason to know that a prospective buyer is underage, unlicensed or otherwise incompetent:” (Emphasis added.) Small, 220 Ill. App. 3d at 542. However, having correctly stated the three possible bases for a negligent entrustment claim, the majority speculates that one of them is not a factor after all and proceeds to excise it from the law. The majority permanently removes entrustment of a vehicle to an unlicensed driver from those affected by this cause of action.
The majority holds that since a buyer’s lack of a valid license is not evidence of negligence in an accident, it can never be evidence of negligent entrustment. We are dealing in apples and oranges here.
The plaintiff must prove Waldemar’s actual negligence in operating the motorcycle. Once negligence is shown, however, the causal connection between Grayboy’s negligent entrustment and the plaintiffs injuries is established. See Seward v. Griffin, 116 Ill. App. 3d 749, 755 (1983). A mere showing that Waldemar was unlicensed does not make him negligent (see, e.g., French v. City of Springfield, 65 Ill. 2d 74 (1976)), but a dealer’s independent negligence in entrusting the vehicle to a generally incompetent driver is very different than the driver’s negligence in any particular accident. If the plaintiff can establish Waldemar’s negligence through other evidence, Grayboy’s knowledge that Waldemar was unlicensed becomes relevant to the question of Grayboy’s negligence.
In reaching the opposite conclusion, the majority overlooks this court’s holding in Seward, where we stated, “[Ejntrusting a car to an unlicensed driver is tantamount to entrusting a car to an incompetent driver ***.” Seward, 116 Ill. App. 3d at 754. In Seward, a driver was negligent in causing an accident. We held that a car dealer was independently negligent in entrusting a vehicle to that driver when the dealer had actual knowledge that the driver was unlicensed. Seward, 116 Ill. App. 3d at 755. There is no reason for this court to overrule Seward.
The essential issues before the court on summary judgment were whether Waldemar was unlicensed and inexperienced when he bought his motorcycle, and, if so, did Grayboy have reason to know it?
Conflicting facts presented at the motion for summary judgment show the need for a trial. While Waldemar held a valid license to drive an automobile, there was evidence that he did not hold a license to operate a motorcycle. There was also evidence that Grayboy regularly inquired into prospective buyers’ licensing status and riding experience. Further, there was deposition testimony that Waldemar had operated small, off-road motorcycles before he purchased a street motorcycle from Grayboy, but that he had never operated any motorcycles on the road. Finally, there was evidence that the motorcycle purchased by Waldemar was an especially powerful sports model capable of attaining a top speed of 160 to 180 miles per hour within 10 seconds of a standing start. A fact finder could easily infer that Grayboy sold a powerful motorcycle to Waldemar knowing that he was unlicensed, inexperienced and thus incompetent to operate such a vehicle on the open road.
Because the majority failed to apply the law stated in Seward to this case, and because there was evidence that Grayboy knew that Waldemar was incompetent to operate the motorcycle he purchased, genuine issues of material fact exist. I would reverse and remand.